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Scholarship highlight: How the Justices move the law

Without doubt, the Supreme Court’s most prominent decision so far under the leadership of Chief Justice John Roberts has been Citizens United v. FEC. This five-to-four decision, striking down corporate campaign spending limits against a First Amendment challenge and overruling two earlier Supreme Court precedents, has been the subject not only of sustained academic commentary and editorial criticism but also of controversial criticism from President Obama in his 2010 State of the Union speech in the presence of a number of Supreme Court Justices. Critics have condemned Citizens United as the decision of an “activist” Supreme Court, while supporters have cheered the Court for correcting earlier errant precedent in conflict with the First Amendment.

As Barry Friedman has pointed out in a recent Georgetown Law Journal article, the Supreme Court does not always move the law in such a prominent fashion. Despite the Citizens United ruling, and maybe now more because of the public reaction to it, express overrulings of precedent are rare. The Roberts Court also has engaged in “stealth overruling.” Stealth overruling occurs when the Court does not explicitly overrule an existing precedent. Instead, it “fail[s] to extend a precedent to the conclusion mandated by its rationale,” or it “reduc[es] a precedent to nothing.” Using the example of the Roberts Court’s treatment of Miranda v. Arizona, Friedman demonstrates how the Court has been able to greatly reduce the precedential force of Miranda without incurring public scrutiny and criticism. Friedman is critical of stealth overruling on a number of grounds, most importantly because “stealth overruling obscures the path of constitutional law from public view, allowing the Court to alter constitutional meaning without public supervision.”

I leave to others the question whether the Roberts Court empirically engages in more (stealth) overruling than earlier groups of Supreme Court Justices did and, even if it does so, whether a higher overruling rate is grounds for condemnation. Instead, the more modest aim of my Essay in the Emory Law Journal is to catalog additional tools that Supreme Court Justices can use beyond express and stealth overruling to move the law. I also explain why Justices might choose to use one, rather than another, of these tools to move the law.

In particular, I analyze four additional tools. “Anticipatory overruling” occurs when the Court does not overrule precedent but suggests its intention to do so in a future case. “Invitations” exist when one or more Justices invite (1) litigants to argue for the overruling of precedent in future cases or (2) Congress to overrule Supreme Court statutory precedent. “Time bombs” exist when Justices include within a case subtle dicta or analysis not necessary to decide it with an eye toward influencing how the Court will decide a future case. “Inadvertence” occurs when the Court changes the law without consciously attempting to do so, through attempts to restate existing law in line with the writing Justice’s values.

Anticipatory overrulings can be aimed at either Congress or the public. By giving advanced warning or suggestion as to what a Court is going to do in a future case, the Court can give Congress (or another legislative body, in an appropriate case) a chance to make a change in law to forestall overruling. In the case of the Voting Rights Act issue in NAMUDNO v. Holder, for example, election law scholars have read the Court’s decision as implicitly urging Congress to change aspects of the Act so that the Court would not strike down the law as unconstitutional.

Invitations to litigants, such as the invitations issued by Justice Alito, may signal to a litigant that now is a good time to ask for the overturning of precedent. Although the Court cannot pick which cases come up for possible review, invitations to litigants may make it more likely for a Justice to shape the Court’s docket. This may be especially true in challenges to federal campaign-finance laws, which, thanks to special jurisdictional provisions, often come to the Court on direct appeal, making it more likely that the Court will hear the case on the merits.

It is also no coincidence that Justice Ginsburg, a frequent liberal dissenter in five-four cases on a conservative Court, is inviting Congress to overturn the Court in statutory cases (rather than inviting litigants to bring more cases). Justice Ginsburg is less likely than Justice Alito to get her preferences approved by the current Supreme Court, and so it is unsurprising that she is signaling Congress when there is an especially worthy statutory decision by the Court for Congress to consider overruling.

Time bombs, because of their subtlety, work differently. They are aimed at stacking the deck, or boxing in the Justices, in future cases in which related issues arise. They are meant to be subtle enough to avoid attracting the attention of other Justices who may disagree with the future use of the language included in the Court’s opinion. That the Supreme Court in the Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett case ultimately relied upon the oblique citation of Day in Davis v. FEC as authority for reversing the Ninth Circuit is some evidence that Justice Alito’s potential time bomb paid off. Time bombs also may serve to diffuse public opposition to controversial rulings. A ruling that appears to follow from earlier precedent, as opposed to breaking from precedent, is apt to be less controversial. This is true even if the Court is merely following dicta or an offhanded comment in an earlier case. But time bombs have a disadvantage: they are easier to ignore or dismiss than the more direct means of influencing how the Court decides cases.

All of these tools send signals to the lower courts. While lower courts do not have authority to ignore binding Supreme Court authority, lower courts can interpret cases in ways that are equivalent to overruling or use procedural devices, such as standing, to reach results in line with what the judges predict to be current Supreme Court majority preference.

I conclude that Supreme Court Justices have more tools at their disposal to change the law than first appears. But the various tools for moving the law come with their own costs and benefits, and are aimed at different audiences. Not all tools are appropriate in each circumstance.  Here is a chart describing the tools and their costs and benefits. Perhaps the most significant part of this analysis is the demonstration that the Court can move the law even when Justices do not intend to do so. The eBay Inc. v. MercExchange, L.L.C. example shows the importance for lawyers and law professors to keep up on cases in their fields and to offer amicus help aimed solely at assisting the Court in avoiding inadvertent major changes in the law. Whatever one thinks of the various devices Justices may use to move the law, the law should move only when the Justices want the law to move.


Recommended Citation: Rick Hasen, Scholarship highlight: How the Justices move the law, SCOTUSblog (Oct. 24, 2012, 10:07 AM),